4901:1-3-03
Access to poles, ducts, conduits, and rights-of-way.

(1)
A public utility shall provide an attaching entity
with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned
or controlled by it under rates, terms and conditions that are just and
reasonable. Notwithstanding this obligation, a public utility may deny an
attaching entity access to its poles, ducts, conduits, or rights-of-way, on a
nondiscriminatory basis where there is insufficient capacity or for reasons of
safety, reliability, and generally applicable engineering
purposes.

(2)
Requests for access to a public utility's poles,
ducts, conduits, or rights-of-way must be in writing. A complete application is
an application that provides the public utility with the information reasonably
necessary under its procedures to begin to survey the poles.

(3)
If the public
utility establishes or adopts an electronic notification system, the attaching
entity must participate in the electronic notification to qualify under this
chapter.

(4)
A public utility shall notify the attaching entity in
a timely manner if the application to attach facilities to its poles is deemed
to be incomplete. If access is not granted within forty-five days of the
request for access, the public utility must confirm the denial in writing by
the forty-fifth day [or by the sixtieth day in the case of larger orders as
described in paragraph (B)(6) of this rule]. The public utility's denial of
access shall be specific, shall include all relevant evidence and information
supporting its denial, and shall explain how such evidence and information
relate to a denial of access for reasons of lack of capacity, safety,
reliability, or engineering standards. A request for access to a public
utility's poles, ducts, conduits, or rights-of-way that is not denied in
writing within forty-five days [or by the sixtieth day in the case of larger
orders as described in paragraph (B)(6) of this rule] of the request shall be
deemed to be granted.

(5)
A public utility shall provide all attaching entities
no less than sixty days written notice prior to:

(a)
Removal of
facilities or termination of any service to those facilities;

(c)
Any modification of facilities other than routine
maintenance or modification in response to emergencies.

(6)
An
attaching entity may file with the commission a petition for temporary stay of
the action contained in a notice received pursuant to paragraph (A)(5) of this
rule within fifteen days of receipt of such notice. Such submission shall not
be considered unless it includes, in concise terms, the relief sought, the
reasons for such relief, including a showing of irreparable harm and likely
cessation of service and a copy of the notice. The public utility may file an
answer within seven days of the date the petition for temporary stay was filed.
No further filings under this rule will be considered unless requested or
authorized by the commission. If the commission does not rule on a petition
filed pursuant to this paragraph within thirty days after the filing of the
answer, the petition shall be deemed denied unless suspended.

Not longer than forty-five days after
receipt of a complete application to attach facilities to its poles (or within
sixty days, in the case of larger orders as described in paragraph (B)(6) of
this rule), a public utility must perform a survey which provides
identification of present attachments and any modification to the pole, duct,
conduit, or right-of-way that must be performed to accommodate the requested
attachment.

Where a request for access is not
denied, a public utility shall present to the attaching entity an estimate of
charges, if any, to perform all necessary make-ready work within fourteen days
of providing the response required by paragraph (B)(1) of this rule, or in the
case where a prospective attaching entity's contractor has performed a survey
as described in paragraph (C) of this rule, within fourteen days of receipt by
the public utility of such survey.

(a)
A public utility
may withdraw an outstanding estimate of charges to perform make-ready work
beginning twenty-two days after the estimate is presented.

(b)
An attaching
entity may accept a valid estimate and make payment within twenty-one days from
receipt of the estimate.

(c)
Upon receipt of a written dispute or request for
additional information regarding the scope of work or allocation of costs of
the work from the attaching entity, the twenty-one day period to accept a valid
estimate and make payment will be held in abeyance pending resolution of the
dispute or inquiry to the public utility.

Upon receipt of payment specified in
paragraph (B)(2)(b) of this rule, the public utility shall promptly notify the
requesting attaching entity and all known entities with existing attachments
that may be affected by the make-ready.

(i)
Identify the
individual pole(s) and specify make-ready to be performed on such
pole(s).

(ii)
Set a date for completion of make-ready that is as
prompt as possible, but not longer than sixty days after notification is sent
(or one-hundred and five days in the case of larger orders, as described in
paragraph (B)(6) of this rule).

(iii)
State that any
entity with an existing attachment may modify the attachment consistent with
the specified make-ready before the date set for completion.

(iv)
State that if
make-ready is not completed by the completion date set by the public utility,
the attaching entity requesting access may complete the specified make-ready
pursuant to paragraph (B)(4) of this rule.

(v)
State the name,
telephone number, and e-mail address of a person to contact for more
information about the make-ready procedure.

(ii)
Set a date for completion of make-ready as promptly as
possible, but no longer than ninety days after notification is sent (or one
hundred thirty-five days in the case of larger orders, as described in
paragraph (B)(6) of this rule).

(iii)
State that any
entity with an existing attachment may, consistent with paragraph (B)(5) of
this rule, modify the attachment consistent with the specified make-ready
before the date set for completion.

(iv)
State the name,
telephone number, and e-mail address of a person to contact for more
information about the make-ready procedure.

(c)
Public utilities
may deny access where there is insufficient capacity and for reasons of safety,
reliability, and generally applicable engineering purposes.

(4)
If a
public utility fails to respond as specified in paragraph (B)(1) of this rule,
an attaching entity requesting attachment in the communications space may, as
specified in paragraph (C) of this rule, hire at its own expense a contractor
to complete a survey. If a public utility fails to provide an estimate pursuant
to paragraph (B)(2) of this rule or does not complete make ready pursuant to
paragraph (B)(3)(a)(ii) of this rule, the attaching entity requesting
attachment in the communications space may, as specified in paragraph (C) of
this rule, hire a contractor at its own expense to complete the
make-ready.

(5)
For wireless attachments above the communications
space, a public utility shall ensure that make-ready is completed by the date
set by the public utility in paragraph (B)(3)(b)(ii) of this rule. Only the
public utility or its direct contractor may perform make-ready work above the
communications space.

(6)
For the purposes of compliance with the time periods
in this rule:

(a)
A public utility shall apply the timeline described in
paragraphs (B)(1) to (B)(3) of this rule to all requests for pole attachments
up to the lesser of three hundred poles or one-half per cent of the public
utility's poles in the state.

(b)
A public utility
may add fifteen days to the survey period described in paragraph (B)(1) of this
rule to larger orders up to the lesser of three-thousand poles or five percent
of the public utility's poles in the state.

(c)
A public utility
may add forty-five days to the make-ready periods described in paragraph (B)(3)
of this rule to larger orders up to the lesser of three thousand poles or five
per cent of the public utility's poles in the state.

(d)
A public utility
shall negotiate in good faith the timing of all requests for pole attachments
larger than the lesser of three thousand poles or five per cent of the public
utility's poles in the state.

(e)
A public utility
may treat multiple requests from a single attaching entity as one request when
the requests are filed within thirty days of one another.

(7)
A
public utility may not deviate from the time limits specified in this rule
unless:

(a)
Before offering an estimate of charges, the parties have a pole attachment
agreement specifying time frames for an estimate and acceptance that exceed
those set forth in this rule.

(b)
During
performance of make-ready for good and sufficient cause it is infeasible for
the public utility to complete the make-ready work within the time frame
prescribed in this rule.

(i)
Good and sufficient cause for deviation from the time
limits may allow utilities to cope with an emergency declared by a governmental
entity or for a major event as defined in paragraph (T) of rule
4901:1-10-01 of the
Administrative Code, but not for routine or foreseeable events such as
repairing damage caused by routine seasonal storms; repositioning existing
attachments; bringing poles up to code; alleged lack of resources; or awaiting
resolution of regulatory proceedings, such as a state public utilities
commission rulemaking, that affect pole attachments.

(ii)
A public
utility that so deviates shall promptly notify, in writing, the attaching
entity requesting attachment and other affected entities with existing
attachments, and shall include the reason for, and date and duration of the
deviation. The public utility shall deviate from the time limits specified in
this rule for a period no longer than necessary and shall resume make-ready
performance without discrimination when it returns to routine
operations.

(8)
If safety
violations are found to exist on a pole requested for attachment, the attacher
that is found not to be in compliance with the utility's applicable engineering
and construction standards shall be financially responsible for correction of
the violation.

(1)
A public utility
shall make available and keep up-to-date a reasonably sufficient list of
contractors it authorizes to perform surveys and make-ready in the
communications space on its poles in cases where the public utility has failed
to meet deadlines specified in paragraph (B) of this rule.

(2)
If an attaching
entity hires a contractor for purposes specified in paragraph (B) of this rule,
it shall choose from among the public utility's list of authorized
contractors.

(3)
An attaching entity that hires a contractor for survey
or make-ready work in the communications space shall provide the public utility
with a reasonable opportunity for a public utility representative to accompany
and consult with the authorized contractor and the attaching
entity.

(4)
The consulting representative of an electric utility
or telephone company may make final determinations, on a nondiscriminatory
basis, where there is insufficient capacity and for reasons of safety,
reliability, and generally applicable engineering purposes.

(1)
Public utilities are subject to all constitutional,
statutory, and administrative rights and responsibilities for use of public
rights-of-way.

(2)
Private rights-of-way for all public utilities are
subject to negotiated agreements with the private property owner, exclusive of
eminent domain considerations.

(3)
Public utilities
are prohibited from entering into exclusive use agreements of private building
riser space, conduit, and/or closet space.

(4)
Public utilities
shall coordinate their right-of-way construction activity with the affected
municipalities and landowners. Nothing in this rule is intended to abridge the
legal rights and obligations of municipalities and landowners.

(E)
The
commission reserves the right to require any or all arrangements between public
utilities and between public utilities and private landowners to be submitted
to the commission for its review and approval, pursuant to sections
4905.16 and
4905.31 of the Revised
Code.

(F)
The public utility is required to allow attaching
entities to use the same attaching techniques used by the public utility itself
or another similarly situated attaching entity on the pole, consistent with the
utility's then-current engineering practices and standards.